These new rules have been prepared by an employment law “dream team”, chaired by the former President of the Employment Appeal Tribunal, Mr Justice Underhill, working with the Presidents of the Employment Tribunals in England and Wales and in Scotland, and with the assistance of many distinguished lawyers. They are intended as a “thorough review” of the previous rules of procedure, and are a complete re-write of the rules. In this post I will look at two particular features of the new rules – the amendment to the overriding objective, and the new “sift” procedure.

The overriding objective

The overriding objective is central to both the old and new rules. Both sets of rules require that “A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, the Rules. The parties shall assist the Tribunal to further the overriding objective …” (this is taken from the new rules, but is essentially the same in the old rules).

The old and new rules set out the overriding objective slightly differently.

The old rules

Under regulation 3 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004:

“(1) The overriding objective of these … rules … is to enable tribunals and chairmen to deal with cases justly.

(2) Dealing with a case justly includes, so far as practicable: —

(a) ensuring that the parties are on an equal footing;

(b) dealing with the case in ways which are proportionate to the complexity or importance of the issues;

“The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—

(a) ensuring that the parties are on an equal footing;

(b) dealing with the case in ways which are proportionate to the complexity and importance of the issues;

(c) avoiding unnecessary formality and seeking flexibility in the proceedings;

(d) avoiding delay, so far as compatible with proper consideration of the issues; and

(e) saving expense.”

Spot the difference

Under the old rules, the overriding objective was to deal with the case justly. Under the new rules, it is “fairly and justly”.

Under the old rules, a case is to be dealt with in a way that is proportionate to the complexity “or” importance of the case, now it is to be complexity “and” importance.

“Ensuring that [the case] is dealt with expeditiously and fairly” under the old rules becomes “avoiding delay, so far as compatible with proper consideration of the issues”.

The three changes above seem simply to be re-writes of much the same thing, perhaps in accordance with the “plain English” objectives of the new rules, but more substantial is the addition of a new factor:

“avoiding unnecessarily formality and seeking flexibility in the proceedings”

Informality has always been considered a virtue of the employment tribunal system, but I’ve not known it set out in quite this way before. It’s going to be fascinating to see what, if any, effect this has on tribunal practice. For instance, will this aspect of the overriding objective be cited in their defence by a party facing sanctions for failing to comply with tribunal orders? Will “seeking flexibility” be cited by a party seeking a last-minute adjournment or postponement?

It is interesting that whereas in traditional legal proceedings formality might have been considered an essential part of delivering justice, informality is now being emphasised – at least in the employment tribunal.

An addition in the new rules, which has no equivalent in the old rules, is a positive obligation for the parties to “co-operate generally” as well as seeking to assist the tribunal to further the overriding objective. Exactly how this will work out in practice remains to be seen.

Finally, the new tribunal rules do not take up the proposal in “Resolving Workplace Disputes” (p47) for an addition to the overriding objective to stress the importance of “allotting to [each case] an appropriate share of the [tribunal’s] resources, while taking into account the need to allot resources to other cases”.

The “sift”

The new rules set out a new form of “initial consideration” of cases (paragraphs 22 – 24), with the possibility that claims or responses, or part of them, will be struck out at an early stage.

This is clearly influenced by the Employment Appeal Tribunal’s “sift” stage (rule 3.7), but there are significant differences.

First, in the employment tribunal this “initial consideration” takes place once the response is received, not once the claim is lodged. In the Employment Appeal Tribunal, the sift takes place once the appeal is lodged, with no requirement for the respondent to the appeal to file any response.

Second, in the employment tribunal an employment judge can only contemplate striking out all or part of a claim or response at this stage if he or she considers that it has “no reasonable prospect of success”. The grounds on which the EAT can act on the sift are rather wider, including where the appeal appears to be an abuse of process.

In addition to this, ideas of “no reasonable prospect of success” are in practice likely to be considered differently by a fact-finding tribunal (like the employment tribunal) rather than the EAT, which simply considers points of law. The existing employment tribunal rules contain a power to strike out where there is no reasonable prospect of succes, and it has been consistently emphasised that this power should not be used where there are significant factual issues to decide. There is no reason to suspect that any different interpretation is intended by the use of these words in the new rules. It seems likely to remain rare that an employment judge will assess a claim (or defence) as having “no reasonable prospect of success”.